Thomas v. Conroe Independent School District

83 F. App'x 663

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 18, 2003
• Docket: 03-20629
• Status: Unpublished

Opinion

PER CURIAM. *

Kathleen Thomas, individually and as next friend of Shelby Severance, appeals the district court’s dismissal of her complaint pursuant to Fed. R. Crv. P. 12(b)(1) for failure to exhaust administrative remedies. Because the relief Thomas seeks is. available under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., she is subject to its exhaustion requirement. 20 U.S.C. § 1415(1); Gardner v. School Bd. Caddo Parish, 958 F.2d 108, 112 (5th Cir.1992).

Thomas’ argument that Conroe Independent School District’s (CISD’s) alleged violation of the “stay-put” provision of IDEA, 20 U.S.C. § 1415(j), is a basis for bypassing the exhaustion requirement is without merit, as there was no administrative or judicial proceeding pending when the alleged stay-put violation occurred. The stay-put provision is therefore inapplicable. Thomas’ argument that the district court should have issued a preliminary injunction against the defendants’ changing Shelby’s educational placement and/or services in violation of IDEA safeguards does not address the exhaustion requirement and is therefore irrelevant.

Thomas has failed to demonstrate error in the district court’s dismissal of her case without prejudice for failure to exhaust administrative remedies. That dismissal is hereby AFFIRMED.

CISD’s motion to dismiss this appeal and for sanctions pursuant to Fed. R.App. P. 38 is DENIED.

AFFIRMED. MOTIONS DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.